Commonwealth v. McDonald

• Citation: 187 Mass. 581,73 N.E. 852
• Parties: COMMONWEALTH v. McDONALD.
• Decision Date: 03 April 1905
• Court: United States State Supreme Judicial Court of Massachusetts

187 Mass. 581

73 N.E. 852

COMMONWEALTH v. McDONALD.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1905

COUNSEL

P.J. Casey, for appellant.

M. J Sughrue, for the Commonwealth.

OPINION

BRALEY J.

The motion to quash was overruled properly, as the indictment on its face sufficiently set forth with technical precision enough to charge the defendant with the crime of larceny. Com. v. Adams, 7 Gray, 43; Green v. Com., 111 Mass. 417. Under the agreed statement of facts, when supplemented by the defendant's evidence, it clearly appears that the money collected by him, either as cash from customers or as returns of the checks which he negotiated should have been delivered to the captain of the vessel, by whom alone, after certain deductions had been made for expenses of the voyage and necessary disbursements, it was to be divided in the proportion of one-fourth to the owner of the vessel and the remaining three-fourths among the crew which included the defendant. Upon being selected by the crew, the defendant, as purser, accompanied the captain for the purpose of verifying the amounts received from the various persons to whom fish had been sold. The information thus obtained he was to communicate to them, so that they would be fully informed of the financial result of the voyage, and thus be able to determine the share justly due each on its settlement. In the performance of this service the defendant acted not as a part owner collecting money coming from the common venture, but as an agent for a special purpose. And when the checks were committed to him, either for custody or collection, and he was authorized to receive the money due from customers whose places of business were on the wharf, he became bound by the understanding between them to deliver to the captain on the following morning the checks, or their proceeds, and money he had collected.

This brings us to the principal ground of defense--that because the defendant lawfully obtained possession of the property he was guilty of the crime of embezzlement, and not of larceny and the variance between the allegations of the indictment and the evidence was fatal. The distinction between larceny at common law and the offense of embezzlement has been fully pointed out, and no further exposition is required in this case. Com. v. James, 1 Pick. 375, 382; Com. v. Ryan, 155 Mass. 523, 527, 30 N.E. 364, 15 L. R. A. 317, 31 Am. St. Rep. 560; Com. v. Rubin, 165 Mass. 453, 454, 43 N.E. 200; Com. v. Parker, 165 Mass. 526, 529, 43 N.E. 499. It is also plain that under the law as it stood before St. 1899, c. 316, now Rev. Laws, c. 208, § 26, upon the evidence the defendant was entitled to an acquittal. Com. v. King, 9 Cush. 284; Com. v. O'Malley, 97 Mass. 584; Com. v. Berry, 99 Mass. 428, 96 Am. Dec. 767; Com. v. Hussey, 111 Mass. 432; Com. v. Mead, 160 Mass. 319, 35 N.E. 1125; Com. v. Flynn, 167 Mass. 460, 45 N.E. 924, 57 Am. St. Rep. 472. But since this enactment it has been unnecessary to state the fiduciary relation existing between a defendant and the person entitled to the property embezzled, or to allege that the defendant to whom it had been intrusted converted it to his own use, for the crime of larceny under this statute includes the criminal appropriation of personal property where no trespass or fraud which has been held equivalent to trespass in obtaining its possession appears. By St. 1899, c. 409, § 12, now Rev. Laws, c. 218, § 38, it is enough for appropriately charging the offense to aver directly that the person accused did steal, without making the usual descriptive averments of asportation, or means used to obtain possession of the property. Com. v. Kelley, 184 Mass. 320, 323, 68 N.E. 346. But as evidence of embezzlement is now sufficient to support a charge for larceny, an indictment which correctly sets forth the latter crime in the customary language of...